Exam-3 essay
questions.Read the entire exam
first.I’ll see the emphasis points,
Intentional torts, proximate cause.Don’t create issues if they are not there.

Reason for law-to give certainty

INTENT:

In intentional torts there is no need for proximate cause.

Can be proven in 2 ways:

1Specific Intent:D acted with the purpose of bringing
about the result.The result being some
sort of physical or mental effect upon another person.

2General Intent:D knew with substantial certainty that
such result would occur as a result of his actions.

- Good faith mistake or mental illness does not negate
intent so long as the D intended the consequence of his act.

- D does not have to intend to harm the person.

- Recklessness by D is not enough.If it is highly likely that a bad consequence
will occur, then the act is not an intentional tort.It must be SC that the bad consequence will
occur.

- The act must be intentional or substantially certain, but
the consequences don’t have to be.

TRANSFERRED INTENT:

The doctrine allows the P to prove intent, by proving
that the D intended to commit one of the 5 intentional torts and accomplished
committing one.

If D had the intent with respect to person C, he will be
held to have committed anintentional
tort against any other person who happens to be injured.

Example; A intends to hit B, so she throws a punch at him,
but misses, and instead of hitting him (which would constitute battery), she
only manages to scare him.A will be
liable in assault, even though she did not intend to scare B.

The tort to tort transferred intent may be applied to battery,
assault, false imprisonment, intentional infliction of emotional distress, and
trespass to land and chattels. In other words, the D intended to commit one
of the 5 intentional torts and accomplished committing one.

I. ASSAULT

1unlawful act

2intentional

3placing of another

4in apprehension

5of imminent harmful or offensive contact (objective,
ROPP)

6with the apparent ability to carry it out

Assault is defined as the unlawful intentional placing
of another in apprehension of imminent harmful or offensive contact, with the
apparent ability to carry it out.

To be liable, D doesn’t need to have the actual ability,
just apparent ability for such conduct.

Elements:

1.A
voluntary/affirmative act

1Words alone are not sufficient.Words must be coupled with some conduct by
the D.

Example; Verbal threats immediately followed by reaching into
his pocket may create apprehension which might not be reasonable absent the
verbal threats or D’s past acts.

1Physical act alone is sufficient

2Also, words spoken by the D may negate his
conduct or any reasonable apprehension stemming from it.

Example; B violently shakes his fists at A, and says “If you
weren’t my friend I would punch you right now.”B’s words are enough to undue any reasonable apprehension by A.

P may not recover for her apprehension that someone else
will be so touched.

P must have the belief that something undesirable is going
to happen, and that they are at risk.Fear
is not a necessary element.

2The apprehension must be imminent.Threat of future harm is not sufficient.

3Apprehension must be reasonable (ROPP)

4.Causation

1P must prove that the D’s voluntary act caused
the P’s apprehension.

THE EXISTENCE OF AN ASSAULT DEPENDS ON WHETHER THE D HAD THE
LEGAL RIGHT TO COMPEL P TO PERFORM THE ACT.

Hypos;

P is a burglar and breaks into D’s house. D says, “If you
don’t leave, I’ll throw you out.”There
is no assault on P, since D has the legal right to force P to leave.

D threatens to shoot P and leaves the room for the stated
purpose of getting his revolver.NO
ASSAULT

A person across the room threatens to kiss you.NO ASSAULT

A large boxer says to a small man, “I am going to punch your
lights out.” ASSAULT

II.BATTERY

2intentional

3harmful or offensive touching – direct/or
indirect

4without justification or excuse

Battery is defined as an intentional harmful or
offensive touching without justification or excuse.

Elements:

1.An affirmative
act.

1Act must be voluntary.

2Involuntary or unconscious acts do not qualify.

2.Intent

1Purpose/knowledge to cause harmful or offensive
touching; OR

2Substantial certainty that harmful or offensive
touch will occur; OR

Example; D shoots at C, intending to miss him, but also
intending to make him think that he would be hit.D has the intent needed for battery.

1Transferred intent applies

3.Harmful or
offensive touching

1Objective standard. Would the ROPP find the
touching harmful or offensive?

2Extreme sensitivities of the individuals will
not be considered unless the D knew of the sensitivities.

3Actual awareness at the time of the touching is
not necessary.

Example; D kisses C, while she is asleep.D has committed a battery.

4Touching
must be with the individual’s person (body) or any object which may be
considered a natural extension of the individual’s body.(Fisher v. Carrousel)

5Harmful:in that it causes pain or bodily damage

Offensive: if
it is damaging to a reasonable sense of dignity

Example; D spits on P.A battery has occurred because a ROPP of average sensitivity in P’s
position would have her dignity offended.

1Agent – D does not have to come in
contact with the person, a ball can act as the agent for the battery.

2Occurs without consent or justification (as in a
boxing match)

4. Causation

1P must prove the D’s voluntary act caused the
harmful touching.

Hypo- blowing smoke into someone’s face of normal health is
not a battery but a mental issue.

Hypo- If someone says “lookout there’s a snake!” and the
victim fell off the cliff and injured himself.It is a battery when he hits the ground, but if he only jumps around in
fright but doesn’t fall to the ground, then no battery.

III.FALSE IMPRISONMENT

2intentional

3restraint or confinement

4through force or threat of force

5which confines one to a bounded area

6without justification or excuse

7and the person is aware of it

False imprisonment is defined as the intentional
restraint of another through mental or physical boundaries without legal
justification and the person is aware of it.

2Confinement through taking of a person’s
personal property without which they cannot leave (wallet).

3Mental confinement:fear of harm forces the individual to remain
within the limited space

4Failure to proved means of egress.

2.Intent

1Purpose/knowledge to confine; OR

Example; D a shopkeeper,
negligently locks the store while P, a customer, is in the bathroom.This is not false imprisonment, since D did
not intend to confine P.

2Substantial certainty that act will cause
confinement; OR

3Transferred intent applies to torts or across
targets.

3.Limited Space

1D’s act must confine P to a limited space with
defined boundaries.

2No FI when an individual is prevented from
entering an area or a space (building) because they are not prevented from
going anywhere else, so they have not been confined.

4.Awareness

1P must be aware of their confinement at the time
of the confinement.

2Exception:Some courts waive the awareness requirement if the P suffered physical
injury during or as a result of confinement.

Children are excused from the
awareness requirement, b/c of their age and maturity.

If unconscious at the time of FI,
then you wake up and are aware, than FI.

5.No Reasonable
Means of Escape

4If there is a reasonable means of escape and the
P is aware of it at the time of confinement, NO FI.

5If P’s escape is reasonable and P is injured in
the process of escape, than the D can be liable for the injuries caused to P.

6.P must be held
against their free will& protest

1Mere obligation to stay is not sufficient.

2Submission to stay due to persuasion of another
is not sufficient.

P must be restrained against his will & protest, b/c if
you do not protest than you blow your case. If P submits to persuasion, and accompanies D
to clear up a situation without any implied threat of force, than no FI.

The longer the confinement, the greater the damages the P is
entitled to.

Threats of future action are not enough.There is no FI if the D threatens to call
police and have P arrested unless he stays.

Hypo – If a person requests to be let off air plane because
they were afraid and pilot refused.No
duty to release unless urgent circumstances exist.

Hypo – A person complains of chest pain on an airplane and
dies and the person is required to sit next to the dead body until the flight
landed.Is this a tort?

You must weigh the benefit and risk.Schedule interruptions, fuel is expensive,
many other people to consider.These are
all factors that relay into answering the question of whether or not there is a
tort.

Hypo – Passengers sitting on the tarmac in an airplane
waiting for takeoff for 6-8 hrs.False
Imprisonment ?It is a question of
common sense.How are the facts going to
sit with the jury?A pregnant woman
wants to get off?The airline claims,
that they can’t let you off because we have a schedule to keep.Where is the common sense?What is the jury going to think?

False arrest is defined as the arrest and custody by a
person who claims but does not have legal authority.

2False arrest may lead to FI if other elements of
the tort are satisfied.

3No action if the person arrested actually
committed the crime for which they are arrested.

IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

1intentional

2or reckless infliction

3of severe mental & emotional distress

4through extreme & outrageous conduct

IIED is defined as the intentional or reckless
infliction of severe mental and emotional distress through extreme and
outrageous conduct.

Elements:

1. Extreme & Outrageous Conduct

1Conduct must be go beyond all bounds of decency

Soliciting intercourse must be persistent & aggravated
conduct that goes beyond all reasonable bounds tolerated by a civilized
society.One such illicit request for
intercourse does not give rise to the action.

Persistent & intolerable conduct not generally
acceptable to normal standards of decency requires no physical damage to
P and therefore is sufficient.

2Conduct must be extreme and outrageous based on
a ROPP standard

Example; D threatens that if P, a garbage collector, does
not pay over part of his proceeds to D and his henchman, D will severely beat
P.Since D’s conduct is extreme and
outrageous, and since he has intended to cause P distress, D is liable for
IIED.

Extremely outrageous conduct directed against 3rd
parties, intentionally or with reckless disregard of the consequences, which
causes emotional distress to P, may be enough if such distress is accompanied
by bodily harm.

Example; As a practical joke D tells P that her husband has
been badly injured in an accident, and is lying in the hospital with broken
legs.This conduct is sufficiently outrageous.

3An individual’s sensitivities will not be taken
into consideration unless the D is aware of them.

Known vulnerability of P’s age, sex, illness, pregnancy,
etc., will be considered by the court.

is liable because D recklessly disregarded the high risk
that distress would occur.

1Transferred intent applies if;

Family can claim IIED, but they
have to be present and actually witness the event, and the actor must be aware
that the family is there.Some
jurisdictions require that the family member have suffered physical injury as
well.

It can be a trespass for a plane to fly over P’s property
if:the plane enters into the immediate
reaches of the airspace (below federally-prescribed minimum flight altitudes);
and if the flight substantially interferes with P’s use and enjoyment of
his land (by causing undue noise, vibrations, pollution).

- Hot air balloons landing in another’s property is
not a trespass because they do not have control over where they land.But if you intentionally decide to land
because of some reason or another than that is a trespass and you can also
charge nuisance.

- When government over-flights have substantially
affected habitability of the land below, a court may find a “taking”
within the meaning of the 5th A. to the constitution and the
government will be required to compensate the owner.

Example; A recreational ranch owner sought compensation for
“taking” based on noise from low over-flights by Air Force planes doing touch
and go exercises at adjacent airstrip in remote West Texas.The local government is subject to the same
constitutional responsibility.

Underground:

It is also a trespass to mine under another’s land.In many western state’s, however, the miner
is permitted to follow the vein wherever it may lead, so long as it is
unbroken.

Mistake is no defense to this tort.Because land is very precious to the owner
and the owner is entitled to the use (exclusive possession) and enjoyment
(security to have the land unimpeded whether you are using it or not) of that
land, unfettered by the unlawful trespass of another.Usufruct is the right to have unfettered
use of your property.

Hypo – A customer enters into a room that says “employees
only” in a department store.Trespass

Hypo – A customer opens sliding doors to look for a shirt of
a different size.In the process you
tear your hand badly on a nail and bleed.Are you a trespasser?A
trespasser is owed less care than an invitee and there may be no liability
because you were a wrongdoer.

Hypo – Children playing in a garage and were told to stay
away from the lighter fluid, but they played with it and started a fire.The children became intentional tortfeasors
when they did something that they were not permitted to do.

* A possible defense–“Attractive Nuisance”,
because the lighter fluid was there and available to the children.

VI. TRESPASS TO CHATTELS

2intentional

3interference

4with the right of possession

5of a person’s chattel

6or impairs the condition, quality or
value.

Trespass to chattel is
defined as the intentional interference with the right of possession of a
person’s chattel or impairs the condition, quality or value.

Elements:

1. Intent

1Purpose/knowledge; OR

2Substantial certainty

3Mistake does not negate intent

2.Loss of
Possession

1If P loses possession of the chattel for any
time, recovery is allowed even if the chattel is returned unharmed.

Example; D takes P’s car for a five minute joy ride, and
returns it unharmed.D has committed a
trespass to chattels.

3.Actual Damage

1Actual damage must be suffered by the
owner/possessor of chattel (unlike trespass to land).

2D is only required to pay damages, not the full
value of the property.

ON EXAM – Anytime you have conversion, first begin by
explaining trespass to chattel and then progress to conversion (if it has
occurred) because it always occurs prior to conversion.

Example; A 4 year old girl saw a dog on the porch of a store
and climbed on his back and the dog snapped and bit her in the face.

Held:The dog is a
chattel because it is a moveable object.The dog was not harmed significantly and she could not be held liable
for trespass to the dog.Concluded, that
her conduct did not constitute a trespass which would prevent her from
recovering damages for her injuries.

Hypo – If someone flips my page in my open notebook, it is
not significant enough to be a trespass to chattel.But if someone rips my page in the notebook,
than it is significant and could possibly be a trespass to chattels.

VII. CONVERSION

1intentional

2substantialinterference with; or

3control and dominion

4over one’s possessory interest

5in chattel

6that requires payment for the full value of the
chattel

Conversion is defined as the intentional substantial
interference with, or control and dominion over one’s possessory interest in
chattel that requires payment for the full value of the value.

Elements:

1.Intent

1Purpose/knowledge; OR

2Substantial certainty

3Mistake does not negate intent.

All that is required is that D intended to take possession
of the property.Mistake as to ownership
is generally not a defense.

Example; D buys an old painting from an art dealer, and
reasonably believes that the art dealer has good title.In fact, the painting was stolen from P years
before.D keeps the painting in his
house for 10 years.D is liable for
conversion, regardless of his honest mistake about title.

2. Actual damage is not required

Example; D steal’s P’s car, then seriously (though not
irreparably) damages it in a collision.D is liable for conversion, and will be required to pay P the full value
of the car (though D gets to keep the car).

Factors to use in Proving Conversion – Different from
Trespass to Chattel

1Duration & dominion and control

2Intent of the D

3D’s good faith or bad faith

4Extent of the resulting interference or duration
of D’s dominion over the party

5Extent of harm to the chattel; and

6Inconvenience and expense to the owner

Ways to Convert Chattel

1Stealing

2Damaging

3Using chattel (especially by a bailee)

4Obtaining possession from a thief

5Wrongfully selling chattel

6Delivery of chattel to the wrong person

7Refusing to return chattel to the rightful
owner.

PRIVILEGES

I.CONSENT

Where a party consents to the intentional conduct of
another, the former cannot later bring an action against the other person in
intentional tort.

D who has committed an intentional tort may prevent
liability by proving that the P consented to the D’s conduct.

Consent must be knowing & voluntary.

I.ExpressConsent – Consent is clearly expressed by the P

II. Implied

1Implied through P conduct;

2ROPP standard; would a person in D’s position
believe that the P consented.

3Implied by law; where it is an emergency and
there is no time to consent and a ROPP in the P’s position would have consented
under the circumstances.

Scope of Consent:D must stay within scope of consent.It may be determined based on custom and circumstances of the case.

Consent is ineffective if obtained through fraud
or if P is mistaken about a material fact and the D knows of the P’s
mistake.Consent to criminal acts
is ineffective (majority).

Consent to criminal acts is effective even if it
involves a breach of peace (minority).

II. SELF-DEFENSE

Every individual is privileged to use reasonable force
to defend against threatened battery by another.

Good faith belief:individual must reasonably believe that use of force is necessary.

A person may be wrong in their belief, as long as the belief
was reasonable.

Threat of harm must be imminent:

1Harm must be occurring or about to occur.

2No self-defense allowed for harm which occurred
in the past.

3Once the aggressor has retreated and the threat
of harm is no longer imminent, the privilege terminates.

Amount of force allowed:

1Non-deadly force, no duty to retreat (majority)

2Deadly force, requires retreat if
the party can do so safely, unless the party is in her home.

3Reasonable force includes deadly force where it
is reasonable to protect against that harm.

Provocations:Verbal threats alone do not justify self-defense.The provocations must be accompanied by
threat of physical force.

III. DEFENSE OF OTHERS

A person may use reasonable force to protect others
against imminent threat of harm.

The intervenor must use reasonable force.

Effect of Mistake:

1Privilege only applies where the 3rd
party himself would be allowed to use self-defense.If the intervenor is mistaken, they may be
liable in intentional torts even if the mistake was reasonable.(majority)

IV. DEFENSE OF PROPERTY

A person is privileged to used reasonable force to
protect personal or real property.

NEVER INCLUDES DEADLY FORCE OR FORCE WHICH CAUSES SERIOUS
BODILY HARM.

DEADLY FORCE ONLY TO PROTECT ONE’S OWN PERSONAL SAFETY OR
THAT OF OTHERS ON THE PROPERTY, OR IN THEIR OWN HOME.

V.RECOVERY OF
CHATTEL

One may use reasonable force to recover chattel which
has been unlawfully taken from them.

NEVER INCLUDES DEADLY FORCE FOR RECOVERY OF CHATTEL.

May be used when;

2When the wrongdoer is in the process of
taking the chattel; or

3Shortly after wrongdoer has taken the property,
and the rightful owner/possessor is in hot pursuit of the wrongdoer.

Shopkeeper’s Privilege

1Merchants have the right to detain, for
reasonable investigation, an individual whom they believe to have taken a
chattel unlawfully.

Elements:Reasonable
belief that the detainee has taken the property; and reasonable time and
manner of investigation.If any of
these elements are not fulfilled, the merchant may be liable for false imprisonment.

VI. NECESSITY

Public Necessity:

2Interference with one’s real or personal
property is necessary to prevent a disaster to the community or to a large
number of people

NEGLIGENCE

I.ELEMENTS OF
NEGLIGENCE:It Is a Prima Facie case

1.Duty – a legal duty to use
reasonable care, so as to avoid unreasonable risk to others.If you have no legal duty to a person, than
you cannot be negligent.It is closely
related to responsibility.

Example; drivers on the highway
have a legal duty to other drivers.

2.Breach – of the standard of care
of a reasonable person in those same circumstances.Thought of as carelessness.

3.Causation – a reasonably close
causal connection between the conduct of the resulting injury. This is
proximate cause.In other words, the
proximate cause between the defendant’s act of negligence and harm suffered by
plaintiff.It involves 2 elements;
“causation in fact” and “legal or proximate causation.

1Forseeability

4.Actual damages or injuries –
suffered by plaintiff.Proof of damage
is required.

1If no harm from the defendant’s negligent
conduct, but the plaintiff is threatened, he may be able to obtain an
injunction to stop the activity as a “nuisance”

II. UNREASONABLE RISK:

Negligence occurs when the defendant’s conduct imposes an
unreasonable risk upon another, which results in injury to that other.Their mental state is irrelevant.

Plaintiff must show that the defendant’s conduct, viewed as
of the time itoccurred, without benefit of hindsight, imposed an
unreasonable risk of harm.

Courts use a balancing test to determine whether the
risk of harm from the defendant’s conduct was so great as to be unreasonable:

1“Where an act is one which a reasonable person
would recognize as involving a risk of harm to another, the risk is
unreasonable and the act is negligent if the risk is of such magnitude to outweigh
what the law regards as the utility of the act or of the particular
manner in which it is done.”

III. THE REASONABLE PERSON STANDARD:

A.Objective
Standard:

The reasonableness of defendant’s conduct is viewed under an
objective standard.

2“Would a reasonable person of ordinary
prudence, in defendant’s position, do as defendant did?”

B.Physical and
Mental Characteristics:

The question is whether the defendant behaved reasonably “under
the circumstances.”The
circumstances generally include the physical characteristics of defendant
himself.

3Physical disability – the standard for
negligence is what a reasonable person with that physical disability would have
done.

Example; P is blind and is struck
while crossing the street using a cane.If the issue is whether P was contributory negligent, the issue will be
whether a blind person would have crossed the street in that manner.

4Mental characteristics – The mentally
handicapped & the insane are held to the same standard as the ordinary
person in all types of torts.The
ordinary person is not deemed to have the same particular mental
characteristics of defendant.

The
mentally ill pay for there torts because they should pay there way, to make the
people responsible for
them more careful, and b/c we do not know if they are faking.

Example; If defendant is more
stupid, or more careless, than an ordinary person, this is not a
defense.

5Children – a child is held to the level
of conduct of a reasonable person of that age and experience, not
that of an adult.

Reasonable
ordinary Prudent Child

1)
Knowledge

2)
Experience

3)
Maturity

4)
Education

5)
Age

These elements are all subjective

Adult activity:But where a child engages in an inherentlydangerous activity normally pursued only by adults, they will be
held to the standard of care that a reasonable adult doing that activity would
exercise.

Use of a powered vehicle is normally engaged in by adults
(cars, airplanes, ATV’s, tractors etc…)

Example; If the child (defendant)
operates a motor boat, an activity that is potentially dangerous and normally
pursued by adults, defendant will be matched to the standard of care of a
reasonable adult boater.

6Intoxication – Voluntary Intoxication is
no defense.Even if defendant is drunk,
they will be held to the standard of conduct of a reasonable sober person.

Involuntary intoxication is
a defense.

C.Custom:

Courts generally allow evidence as to custom for the
purpose of showing presence or absence of reasonable care.However, this evidence is not conclusive.

7Evidence by defendant:Where defendant shows that everyone else in
the industry does things the way the defendant did them, the jury is still free
to conclude that the industry custom is unreasonably dangerous and thus
negligent.

Example; Defendant operates a
tugboat without a radio; the fact that most tugboats in the industry do not yet
have radios does not prevent the jury for holding that defendant’s lack of a
radio was negligent.

8Proof by plaintiff:Proof offered by plaintiff that others in
defendant’s industry followed a certain precaution that the defendant did not,
will be suggestive but not conclusive evidence that defendant was negligent.

D.Emergencies:

If defendant is confronted with an emergency, and is
forced to act with little time for reflection, defendant must merely behave as
a reasonable person would if confronted with the same emergency, not as a
reasonable person would with plenty of time to think.

As long as, he didn’t create the emergency through his
own negligence.

What would a Reasonable Ordinary Prudent Person under
the Circumstances do?

If the person is in Imminent Peril then he must act
immediately/ It is a reflex action and may be excused

If there is time to reflect goes with the Emergency
Doctrine and there is a higher degree of care.

Example; D is a cab driver.A thief jumps in the cab, points a gun at D’s head, and tells him to
drive fast.D, in a panic, mistakenly
puts the car in reverse and injures plaintiff.The issue is whether a cab driver confronted with a gun-pointing would
or might have behaved as D did, not whether a cab driver in ordinary
circumstances would have behaved that way.

E.Anticipating
conduct of others:

A reasonable person possesses
at least limited ability to anticipate the conduct of others.

9Negligence:Defendant may be required to anticipate the
possibility of negligence on the part of others.

Example; It may be negligent for
the defendant to assume that all drivers near him will behave non-negligently,
and that others will not speed, signal properly, etc.

10Criminal or intentionally
tortuous acts:Normally the
defendant is entitled to presume that third persons will not commit crimes
or intentional torts.

Special knowledge:But if the defendant has a special
relationship with either the plaintiff or the third person, or special
knowledge of the situation, then it may be negligence for defendant not to
anticipate a crime or an intentional tort.

Example; It may be negligence for
defendant, a psychiatrist, not to warn P that a patient of defendant’s is
dangerous to P.

IV.MALPRACTICE:

A.Superior
Ability or Knowledge:

If D has a higher degree of knowledge, skill
or experience than the “reasonable person,” D must use that higher
level.

Example; D, because she is a local resident, knows that a
stretch of highway is exceptionally curvy and thus dangerous.D drives at a rate of speed that one who did
not know the terrain well would think was reasonable, and crashes, injuring her
passenger, P. Even though D’s driving would not have represented carelessness
if done by a reasonable person with ordinary knowledge of the road, D was
responsible for using her special knowledge and is negligent for not doing so.

Not responsible for mere errors in judgments.An error in a stragic decision.This will not constitute negligence, unless
it is a gross deviation from the norm.

B.Malpractice
Generally:

Professionals, including doctors, lawyers, accountants,
engineers, etc., must act with the level of skill and learning commonly
possessed by members of the same profession in good standing.

11Good results not
guaranteed:The professional will
not normally be held to guarantee that a successful result will occur
only that she will use the requisite minimum skill and competence.

12Differing schools:If there are conflicting schools of
thought within a profession, D must be judged by reference to the belief of the
school he follows.

Example; An osteopath is judged by
the standards of osteopathy, not the standards of medicine at large.

1Specialists:If D holds out as a specialist in a certain niche in her
profession, she will be held to the minimum standard of that specialty.

Example; An M.D. who holds herself
out to be as an ophthalmologist must perform to the level of the minimally
competent ophthalmologist, not merely to the minimum level of the internist or
general practitioner.

2Minimally qualified member:It is not enough for P to prove that D
performed with less skill than the average member of the
profession.D must be shown to have
lacked the skill of the minimally qualified member in good standing.

- Novice:One who is just beginning the practice
of his special profession is held to the same level of competence as a member
of the profession generally.

Example; A lawyer who has just
passed the bar does not get the benefit of a lower standard – he must perform
at the level of minimally competent lawyers generally, not novices.

3Community standards:Traditionally, doctors and other
professionals have been bound by the professional standards prevailing in the community
where theypractice, not by a national standard.However…..

Example; Traditionally, the
“country doctor” need not perform with the skill commonly found in cities.

Change in rule:But
this rule is on its way out, and many if not most courts would today apply a
national standard.In “modern” courts, P
may therefore use expert testimony from an expert who practices outside of D’s
community.

4Informed Consent:The rule of “informed consent.”Imposes a duty on the physician or
surgeon to inform patients of options and their risks.The doctor must disclose to the patient all
risks inherent in the proposed treatment which are sufficiently material that
a reasonable patient would take them into account in deciding whether to
undergo the treatment.

Failure to get the patient’s adequate consent is
deemed a form of malpractice and thus a form of negligence.If a physician breaches that duty, patients
consent is defective, and physician is responsible for consequences.Three elements based on lack of informed
consent:duty to inform, causation,
and injury.Plaintiff requires an expert witness.

Expert witnesses do not have to testify unless they wish
to.

If treatment is unauthorized, no consent at all, this
is a battery.No expertwitness
is needed to prove plaintiff’s case.

V.AUTOMOBILE GUEST STATUTES:

Generally a minority of states still have “automobile guest
statutes” on their books.These
generally provide that an owner-driver is not liable for any injuries received
by his non-paying passenger, unless the driver was grossly
negligent or reckless.

VI.VIOLATION
OF STATUTE:

A. “Negligence per se” doctrine:

This is where a statute or ordinance imposes upon any person
a specific duty for the protection or benefit of others (in other words a
safety statute).If an unexcused
violation of that statute by D is negligence per se, and thus conclusively
establishes that D was negligent.Use
when a safety statute has a sufficiently close application to the facts of the
case at hand.

Example; D drives at 65 mph in a 55 mph zone.While so driving, he strikes and injures P, a
pedestrian.Because the 55 mph limit is
a safety measure designed to protect against accidents, the fact that D has
violated the statute without excuse conclusively establishes that D was
negligent – D will not be permitted to argue that it was in fact safe to drive
at 65 mph.

5Ordinances and regulations:In most states, the negligence per se
doctrine applies to the violation of a statute.Where the violation is of an ordinance or regulation, courts are split
about whether the doctrine should apply.A few states give lesser effect to ordinances than they do statutes.

B.Statute must
apply to the facts:

The negligence per se doctrine
will apply only where P shows that the statute was intended to guard against
the very kind of injury in question.

6Class of persons protected:This means that P must be a member of the class
ofpersons whom the statute was designed to protect.

Example; A statute requires that
all factory elevators to be provided with a certain safety device.The legislative history shows that the
purpose was only to protect injuries to employees.P, a business visitor, is injured when the
elevator fails due to lack of the device.P cannot use the negligence per se doctrine, because he was not a member
of the class of persons whom the statute was designed to protect.

7Protection against particular harm:Second, the statute must have been intended
to protect against the particular kind of harm that the statute was designed to
protect, and which P seeks to recover for.

Example:A statute requires that when animals are
transported, each breed must be kept in a separate pen.D, a ship operator, violates the statute by
herding P’s sheep together with other animals.Because there are no pens, the sheep are washed overboard during a
storm.P cannot use the negligence per
se doctrine, because the statute was obviously intended to protect only against
spread of disease, not washing overboard.

8Excuse of violation:The court is free to find that the
statutory violation was excused, as long as the statute itself does not show
that no excuses are permitted (strict liability)

REMEMBER THAT YOU MUST HAVE BOTH OF THESE CRITERIA TO
HAVE NEGLIGENCE PER SE.

Typical reasons:

D was reasonably unaware of the particular
occasion for compliance;

D made a reasonable and diligent attempt to
comply;

D was confronted with an emergency not of his own
making;

Compliance would have involved a greater risk of harm.

Example; A statute requires all
brakes to be maintained in good working order.D’s brakes fail, and he can’t stop, so he runs over P.If D can show that he had no way to know that
his brakes were not in working order, his violation of the statute would be
excused, and the negligence per se doctrine would not apply.

In
Texas firing a gun across a road is considered negligence per se.

9Contributory negligence per se:If the jurisdiction recognizes contributory
negligence, D may get the benefit of contributory negligence per se where P
violates a statute.

Clean hands Doctrine-You can’t come into court with dirty
hands, or you are out of court.

Example; Cars driven by P and D
collide.If P was violating the speed
limit, and the jurisdiction recognizes contributory negligence, D can probably
use the negligence per se doctrine to establish that P was contributory
negligent.

10Compliance not
dispositive:The fact that D has
fully complied with all applicable safety statutes does not by itself establish
that he was not negligent – the finder of fact is always free to conclude that
a reasonable person would take precautions beyond those required by statute.

Gross Negligence-a lack of slight diligence or care,
a conscious, voluntary act or omission in reckless disregard of a legal duty
and of the consequences to another party/you can get punitive damages for gross
negligence

Guest Statute-you
can not sue unless the other person was grossly negligent

-family members can’t sue each other
unless of gross negligence

Good Samaritan Statute-exempts from liability a
person who voluntarily renders aid to another in imminent danger but
negligently causes injury while rendering aid

Slight Negligence-does not exist any more/so we use
gross negligence

VII.PROCEDURE IN JURY TRIALS:

Plaintiff bears the burden of proof.This is two distinct burdens.

11Burden of production:First, P must come forward with some
evidence that D was negligent, that P suffered an injury, and that D’s
negligence proximately caused the injury, etc.This burden shifts from P to D, and maybe back again during the trial.

12Burden of persuasion:P must convince the jury that t is more
probable than not that his injuries are due to D’s negligence.The D can raise the possibility of other
causes, they don’t have to prove “more probable than not”

Judge decides all questions of law.They decide whether reasonable people could
differ as to what the facts of the case are; if they could not, he will direct
a verdict.

Jury decides the facts.It is usually the jury that decides whether D’s conduct satisfied the
“reasonable person standard.”

VIII. RES IPSA LOQUITOR:

A. Generally:-very cheap evidence, it is only used if nothing else will help you,
normally the jury will not be impressed about it because they will be
instructed that it is only of inferential value, and they can take it or leave
it.It will rarely be used to prove
negligence.

The doctrine res ipsa
loquitor, “the thing speaks for itself” allows P to point to
the fact of the accident, and to create an inference that, even without
a precise showing of how D behaved, D was probably negligent.

Example:A barrel of
flour falls on P’s head as he walks below a window on the street.At trial, P shows that the barrel fell out of
a window of D’s shop, and that the barrels do not fall out of windows without some
negligence.D had exclusive
control.By use of the res ipsa loquitor
doctrine, P has presented enough evidence to justify a jury verdict for him, so
unless D comes up with rebuttal evidence that the barrel did not come
from his shop or was not dropped by negligence, D will lose.

B. Requirements for:

Courts generally impose 4 requirements.

1No direct evidence of D’s conduct:There must be nodirect
evidence of how D behaved in connection with the event.

2Seldom occurring without negligence:P must demonstrate that the harm which
occurred does not normally occur except through the negligence of
someone.P only has to prove most of
the time negligence is the cause of such occurrences.

Example:If an airplane crashes without explanation, P
will generally be able to establish that airplanes usually do not crash without
some negligence, thus meeting the requirement.

1Exclusive control of defendant:P must demonstrate that the instrumentality
which caused the harm was at all times within the exclusive control of D.

Example:P, while walking on the sidewalk next to D
hotel, is hit by a falling arm chair.Without more proof, P has not satisfied the “exclusive control”
requirement, because a guest, rather than the hotel, may have had control of
the chair at the moment it was dropped (Larson v. St. Francis Hotel).

Multiple
defendants – If there are two or more defendants, and P can
showat least one of the defendants was in control, some cases allow
P to recover (minority approach).This
is especially likely where all of the D participate together in an integrated
relationship.

Example:P is injured while on the operating table,
and shows that either the surgeon, the attending physician, the hospital, or
the anesthesiologist must have been at fault, but is unable to show which
one.P gets the benefit of res ipsa, and
it is up to each individual defendant to exculpate himself (Ybarra v.
Spangard).

Joint and Severable liability-when
you have several people together they share responsibility but each defendant
has the duty to present a defense.

2Not due to plaintiff:P must establish that the accident was
probably not due to his own conduct.

3Evidence more available to D:Some courts also require that evidence
of what really happened be more available to D than to P.

Example:This requirement is satisfied on the facts of
Ybarra, supra, since the Ds obviously knew more than the unconscious patient
about who was at fault.

1Plaintiff was harmed.

C.Effect of
res ipsa:

It permits an inference that D was negligent, even
though there is no direct evidence of negligence.

It allows circumstantial evidence.When res ipsa is used, P has met his
burden of production, and is thus entitled to go to the jury.

D. Rebuttal evidence:

If D can merely show that he was in fact careful (in
other words, shows general evidence of due care), this is not enough to give D
a directed verdict, and the case will still go to the jury.

But if D’s evidence directly disproves one of the
requirements for the doctrine, then D will get a directed verdict (assuming
there is no prima facie case apart from res ipsa).

In other words, the judge will decide the case (direct the
case) without the facts going to the jury.

Example:If D can
show that the instrument that caused the harm was not within his control at all
relevant times, the doctrine will not apply, and D may get a directed verdict.

IX.RESPONDEAT SUPERIOR:

It is a form of vicarious liability, “let the superior
answer for the tort.”

Borrowed Servant doctrine (Captain of the ship)-makes
the nurse the employee per tem of the doctor.Texas does not have the doctrine.The captain is responsible for the actions of his employees.resp ispa is not strict liability, you only
get to the jury and hope for the best

In Texas there are only few occasions were Res ipsa works
in the medical community:

1) resp ipsa locquitur will apply in cases of x-ray burns,

2) operations on the wrong part of the body,

3) mechanical devices,

4) foreign objects.

The reasoning is because the medical science is beyond the
grasps of the jury they must have expert testimony to help establish the
evidence.

Here an ER is held liable for the negligence of his
EE if the ER had control over the actions of his EE when the negligence
occurred.If EE is acting outside of the
scope of his employment, ER is not responsible.

Reasons:

- ER has deep pockets

- ER is able to spread the costs to all of society by
raising prices

- ER can easily insure against such losses

This is a fair result if one believes that the ER, who
controlled the activities of his EE, was partially at fault for failing to keep
the work environment safe for third parties.

If the ER is a 5101C3 than they are classified as a
charitable entity and are responsible for less (“charitable immunity”).

ER does have the defense of “independent contractor”

Texas still has res ipsa locquitor under other cases.

****Single automobiles are available under res ipsa but
multiple vehicles are not because there is a presumption of some control.

ACTUAL & PROXIMATE CAUSE

I.CAUSATION IN
FACT:

P must show that D’s conduct was the “cause in fact”
of P’s injury.In other words, did the
negligence increase the likelihood of harm.

P must show that the conduct “more likely than not”
caused the harm.

Each D’s conduct must be a substantial factor in
bringing about the P’s injury.When this
is proven, both D’s are liable separately for the P’s damages.

1Joint & several liability –
allows the P to recover all of his damages from one D, or to recover part of
his damages from each D.It is up to the
D to seek reimbursement from the other D’s who were also liable.

P must show that there is a causal connection between
the injury and the harm.

A. The “But for” test: (cause in fact):

The conduct was a “but for” cause of P’s injuries, or
“sine qua non” – had D not acted negligently, P’s injuries would not
have resulted.

We cannot hold people liable for ever for everything.

Example:A statute
requires that all vessels have life boats.D sends out a boat without life boats.P, a sailor falls overboard in a storm so heavy that even had there been
a life boat, it could not have been launched.P drowns. Even assuming that D was negligent per se, D’s failure to
provide life boats is not a cause in fact of P’s death, because that death
would have occurred even without the failure.Therefore, D is not liable.

On the exam you must explain the problem and the
remedy.But also you need to explain
completely how you got to that point.

1There can be multiple “but for” causes of an
event.D1 cannot defend on the grounds
that D2 was a “but for cause of P’s injuries – as long as D1 was also a “but
for” cause, D1 is viewed as the “cause in fact.”

B. Concurrent Causes:

Sometimes D’s conduct can meet the “cause in fact”
requirement even though it is not a “but for” cause.This happens where two eventsconcur
to cause harm, and either one would have been sufficient to cause substantially
the same harm without the other.Each
of these concurring events is deemed a cause in fact of the injury, since it
would have been sufficient to bring the injury about.

Example:Sparks from
D’s locomotive start a forest fire; the fire merges with some other unknown
fire and the combined fires burn P’s property.Either fire alone would have been sufficient to burn P’s property.Therefore, D’s fire is a cause in fact of P’s
damage, even though it is not a “but for” cause.(Kingston v. Chicago & N.W.Ry.)

C. Multiple Fault:

If P can show that each of 2 or more D’s was at fault, but
only one could have caused the injury, the burden shifts to each D to show
that the other caused the harm.

Example:

P, D1 & D2 go hunting together.D1 & D2 simultaneously negligently fire,
and strike P.It is unknown who fired
the fatal shot.Court puts the burden on
each D to show that it was the other shot which hit P.If neither can make this showing, both
will be liable(Summers v. Tice).

2The “market share” theory:It is used in product liability
cases.If P cannot prove which of 3 or
more persons caused his injury but can show that allproduced a defective product, the courts will
require each of the D’s to pay that percentage of P’s injuries which that D’s
sales bore to the total market sales of that type of product at the time of
injury.The theory is used most often in
cases involving prescription drugs.And
use a national (as opposed to local) m.s.

Example:

The court held, that any
manufacturer who cannot show that it could not have produced the particular
doses taken by P’s mother will be liable for the proportion of any judgment
represented by that manufacturer’s share of the overall DES market.(Sindell v. Abbott Laboratories).The D’s are held liable for their
market share.If have 50% m.s, then they
are liable for 50%.Some courts follow
this rule, while others reject it and say that they must prove that the D sold
the pill that damaged the P.

Exculpation – Some courts allow each D to exculpate
itself by showing it did not make the particular items in question, others hold
that once a D is shown to have produced drugs for the national market, no
exculpation allowed.

Joint & several liability is rejected by the
courts using the M.S. theory.They allow
the P to collect from any D only that D’s proportionate share of the harm caused.

The more socially valuable the product, the less likely the
court is to apply a M.S. doctrine.Example, a court is likely to reject the doctrine where the product is a
vaccine.

E. Increased risk, not yet followed by actual damage:

If P’s damage has not yet occurred, but D’s conduct
has increased the risk that P will

suffer some later damage, most courts deny P any
recovery unless P can show that it is

more likely than not to occur eventually.But some courts will allow recovery for such

damage.

LEGAL OR PROXIMATE CAUSE (-has to do with policy)

Think in terms of proximate result.How far am I going to track.Run all five theories to see how they work.

Proximate Cause-a
cause that is legally sufficient to result in liability/ a cause that directly
produces an event and w/out which the event would not have occurred

In addition to proving cause in fact, p must show that the
D’s conduct was the proximate cause of the injury.Requires a natural sequence, unbroken
by intervening causes that results in some injury.It really depends on the facts & the
circumstances surrounding each case.

Generally, D will not be liable for the consequences that
are very unforeseeable.

Example; Train is going over the speed limit, however the
passengers in vehicle still did not hear the whistle of the train.Expert testimony showed that the passengers
would have gotten in the accident anyway.Therefore the excessive speed of the train was not the proximate cause.

No proximate cause if the causal chain is overly
tenuous.

Example; A granddaughter with birth defects has no
negligence claim against a manufacturer who produced a drug that the
grandmother ingested while pregnant.

(Enright
v. Eli Lily & Co.)

New York Fire Rule – An owner who has had his
property destroyed by fire through his own negligence will be liable for the next
property over, but not for damages to property beyond that point.Ryan v. New York Central R.R. Co.If you own the nest property, you’re resp. to
yourself.The next property owner that
is not the D.

Learnered intermediary doctrine-a doctor prescribes a
drug for a patient.If there is
something wrong with the drug, the doctor is the learnered intermediary and his
responsibility is to tell the patient the risks of the drugs and he cuts out
between the drug company and the FDA.Up
until now the drug company was not liable because the doctor was the one who
was responsible for telling the patient about the risks of the drugs.The question of warnings is very
subjective.This is just a way for the
drug companies to insulate themselves from liability for defective
products.This is not going to fly says
Weigold b/c doctors only spend only a few minutes with the patients and that
just isn’t enough time to make the patient fully aware of the risks.This doctrine will soon go away.

Multiple Proximate Causes: An
occurrence can have more than one proximate cause.

Example; Each of 2 drivers drives negligently, and P is
injured.Each driver is probably a
proximate cause of the accident.

I. FORSEEABILITY:

Polemis (Direct Tracing) Rule
– this test makes D liable for all damages which could be traced directly back
to the D’s act of negligence.Under this
test, you are responsible for the consequences as far as they reach.If some damage is foreseeable, you
pay.You look back and draw a line
around all of the damage.

You would trace the cause all the
way back until where it starts.

4D driving carelessly collides w/ a car driven by
X.Unbeknownst to D, the car contains
dynamite, which explodes.Ten blocks
away, a nursemaid was carrying infant P and dropped her.D not liable b/c the injury could not be
directly traced to D’s negligence.

Wagon Mound #1 – (a
rejection of Polemis)

-which states that proximate cause
must be reasonably foreseeable.Consequences too remote will not be
considered a direct result.

Discharge of furnace oil was
against harbor rule—neg. as a matter of Law?No—rule was made to prevent pollution.

D
is liable only for those consequences of his negligence which were reasonably foreseeable at
the time he acted.

Example; D’s ship spills oil into a bay.Some of the oil adheres to P’s wharf.The oil is then set afire by some molten
metal dropped by P’s worker, which ignites a cotton waste floating on the
water.P’s whole dock then burns.Held, D is not liable, because the
burning of P’s dock was not the foreseeable consequence of D’s oil spill, and
thus the oil spill was not the proximate cause of the damage.This is true even though the burning may have
been the “direct” result of D’s negligence.(Wagon Mound No.1)

Wagon Mound #2 – increased
the liability of Wagon Mound #1 to any damage that is remotely
foreseeable.Small risks not
worth ignoring—possibility of fire should’ve been foreseen.

The
foresee ability of consequences depends on the balancing between the likelihood of risk and the
magnitude of damages flowing there from.(Wagon Mound
No 2).

They have moved from direct tracing to reasonably
foreseeable and then back towards direct tracing through what is remote foresee
ability.

We are also talking about standard of care because you look
back to see what would a reasonable ordinary prudent person.

Palsgraf (fireworks
package explodes on the way on to train and injures a woman)– 2 views:

To recover, plaintiff must
show that defendant owed him a duty that was then breached by defendant.

TWO MAJOR VIEWS:

1.CARDOZO (Majority) – A
defendant is only liable to those persons who are within the D’s foreseeable
zone of danger.

·Zone of danger- what the “eye of
reasonable vigilance” sees—sees to whom you owe a duty.

·Manner of determining what plaintiffs are
possible—duty is owed to whom you could foreseeable harm.

·Only responsible to the man whose package it
was—only what is foreseeable, not every possible P.

a)The plaintiff must show a wrong to herself;
i.e., a violation of her own right, not merely a wrong to someone else or an
unsocial act.

b)The reasonably perceivable risk defines the
duty to be obeyed.The risk extends to
those within the range of reasonable apprehension.

c)The purpose of the guard's act was to make
the passenger safe.If there was a wrong
at all, it was to the safety of the package.There was nothing in the situation to suggest to the most cautious mind
that the parcel would spread wreckage through the station.

d)Negligence itself is not a tort; it must be
negligence in relation to the plaintiff.

2.ANDREWS (Minority) – All
plaintiffs are foreseeable.

2.Justice
Andrews (Dissent-Minority; more favorable to courts)-

·Duty is not to individual but to society at
large

·Owe a duty to everybody

·Hints:

a.Natural & continuous sequence?

b.Substantial factor of other?

c.Without too many intervening
causes?

d.Can you foresee the result?—is the
effect of cause on result too thin

a)Where an act
unreasonably threatens the safety of others, the wrongdoer is liable for all
proximate consequences regardless of whether they are unforeseeable or
unexpected.

b) The doctrine of proximate cause is a tool which allows
the law to arbitrarily decline to trace a series of events beyond a certain
point.

c)Due care is a duty
imposed on everyone to protect society from unnecessary harm.To say that there is no negligence unless
there is a legal duty owed to the plaintiff himself is too narrow a
conception.Where there is an
unreasonable act, there is negligence.

Kinsman I—P.’s
house flooded due to river backup.Court
followed Cardozo, awarded almost limitless damages (deep pocket theory).

Kinsman II—court
drew a line to limit damages, followed Andrews.

Measurement
of Duty/Damages

1.Polemis—damage as far as it reaches

2.W. Mound I—damage that is foreseeable

3.W. Mound II—what is remotely foresee.

4.Cardozo—“Zone of Danger”

Exceptions:

1Egg Shell Skull(Thin Skull)

Thus if P, unbeknownst to D, has a very thin skull, and D
negligently inflicts a minor impact on his skull, D will be liable if, because
of the hidden skull defect, P dies.The
D “takes the P as he finds him.”Thin
skill rule is for negligence not intentional torts.

2General class of harm but not the same
manner

As long as the harm suffered by P is of the same general
sort that made D’s conduct negligent, it is irrelevant that the harm
occurred in an unusual manner.

Example; D gives a loaded pistol to X (an 8 yr old), to
carry to P.X drops it injuring the
barefoot of Y (his playmate).The fall
sets off the gun, wounding P.D is
liable to P, since the same general kind of risk that made D’s conduct
negligent (the risk of accidental discharge) has materialized to injure P.The fact that the discharge occurred in an
unforeseeable manner – by dropping the gun – is irrelevant.But D is not liable to Y, since Y’s foot injury
was not foreseeable, and the risk of it was not one of the risks that made D’s
conduct initially negligent.

Where it is reasonably foreseeable that the D’s N conduct
would cause damages to the P, the D is liable even though the exact extent
of the damages is not foreseeable

Going to the jury is a matter of
law.Once it is in the juries hands then
it is a matter of fact.

3P part of the foreseeable class

The fact that injury to the particular P was not especially
foreseeable is irrelevant, as long as P is a member of a class as to
which there was a general foresee ability of harm.

Example; D negligently moors its ship, and the ship breaks
away.It smashes into a draw bridge,
causing it to create a dam, which results in a flood.The Ps, various owners whose property is
flooded, sue.Held, these owners
can recover against D, even though it would have been hard to foresee which
particular owners might be flooded.All
of the Ps were members of the general class of riverbank property owners, as to
which class there was a risk of harm from flooding.(Petition of Kinsman Transit Co.)

II.INTERVENING
CAUSES:

An intervening cause is one which is set into motion after
the original negligence of the D.

If an intervening cause is foreseeable, then the causal
chain is not broken and the D is liable.

If it is not foreseeable, it breaks the causal
chain between the original negligent conduct, and harm to the P.An intervening cause which breaks the causal
chain is known as a superseding cause.

Rule ***If the act is criminal in nature, the
subsequent (intervening act) it is by definition unforeseeable.This is not all ways the case.

Exp. I
negligently leave a key in the ignition.Along comes a thief and steals the car.There was a statute prohibiting leaving keys in a car.Leaving a key in the car is foreseeable that
a thief will steal the car and may cause harm.

Exp.If I leave a gun in view in my car and a
person breaks in anduses the gun to
kill someone, it is foreseeable that my gunmay be used to cause harm.Foresee ability can be seen in some criminal cases and my liability may
still be there even if another person causes the harm through my
negligence.

A. Superseding Cause:

Intervening causes that are sufficient to prevent D from
being negligent are called “superseding” causes, since they supersede
or cancel D’s liability.

4Foresee ability Rule:The Test

If D should have foreseen the possibility that the
intervening cause (or one like it) might occur, or if the kind of harm
suffered by P was foreseeable (even if the intervening cause was not itself
foreseeable), D’s conduct will nonetheless be the proximate cause.But if neither the intervening cause nor the
kind of harm was foreseeable, the intervening cause will be a superseding one,
relieving D of liability.

Non-superseding Causes:

Foreseeable Negligence – The negligence of
3rd persons that is sufficiently foreseeable will not relieve D
of liability.

Example; D is a tavern owner, who serves too much liquor to
X, knowing that X arrived alone by car.D also does not object when X gets out his car keys and leaves.If X drunkenly runs over P, a court will
probably hold that X’s conduct is negligently (drunkenly) driving, although
intervening, was sufficiently foreseeable that it should not absolve D of
liability.

Example; A host is liable for the negligence of an adult
social guest who has become visibly intoxicated at the host’s home, provided
the risk of harm is foreseeable.

Criminally or intentionally tortuous conduct
–D’s are not responsible for the
intentional, malicious intervening acts of a 3rd party which are not
reasonably foreseeable. (Watson v. Kentucky & Indiana Bridge & R.R.
Co.)

An intervening act of a 3rd party that is a normal
and foreseeable response to the D’s act, the act will not be
considered superseding.

5Escape:If in response to the danger created by the D, P or someone else
attempts to escape that danger, the attempted escape will not be a superseding
cause so long as it was not completely bizarre.

A railway car is over loaded and a
boy fell over the back because the train lurched forward and there was only a
chain there to hold people in.The kids
cousin jumped over to help save him.You
look at the rescue doctrine, good Samaritan doctrine-which gives rise to
duty, contributory, comparative, emergency doctrine, and assumption of risk
doctrines.

6Rescue:A negligent D is also liable to a 3rd party rescuer
who is injured in an attempt to rescue the originally injured party and may be
liable to the personbeing rescued (even if part or all of his
injuries are due to the rescuer’s ordinary negligence).

7Aggravation of Injury by Medical Treatment:If D negligently injures P, who then
undergoes medical treatment, D will be liable for anything that happens
to P as the result of negligence in the medical treatment, infection, etc.

Except for gross mistreatment
that is so unusual and bizarre that it will be considered superseding.

1Suicide:Committed by a person who was driven insane by a D’s tortuous act, is
not a superseding cause which precludes liability.But D can not be responsible for everything
forever.It must be foreseeable that the
suicide would occur.Use common
sense.

Unforeseeable intervention that leads to foreseeable
results:Is one that leads
to the same type of harm as that which was threatened by D’s negligence,
is usually not superseding.

Example; A telephone pole is negligently maintained by D and
becomes infested with termites.X drives
into the pole and it breaks and falls on P.Even though the chain of events is bizarre, X’s intervention is not superseding,
because the result that occurred was the same general type of harm as that
which was threatened by D’s negligence – that the pole would somehow fall down.

Unforeseeable intervention that has unforeseeable
results:Is one that produces
results that are not of the type that made D’s conduct negligent in the
first place, the intervention will probably be superseding.

2Extraordinary acts of nature

A 3rd persons’ failure to discover and
prevent a danger will almost never be superseding.For instance, if a manufacturer negligently
produces a dangerous product, it will never be absolved merely because some
person further down the distribution chain negligently fails to discover the
danger, and thus fails to warn P about it.

But, if the 3rd person does discover the defect,
and then willfully fails to warn P, D may escape liability if D took all
reasonable steps to remedy the danger.

B.Dependent v.
Independent Intervening Causes:

3Dependant

- Occurs only in response to D’s
negligence

- They are more foreseeable,
and less likely to be superseding

- But they can be superseding,
e.g., a grossly negligent rescue attempt.

4Independent

– it would have occurred even if D
hadn’t been negligent, but can be non-superseding.

C.Unforeseeable
Plaintiff:

D is liable only for foreseeable plaintiffs.In other words, only to those P’s who are in
the reasonably foreseeable zone of danger.That is, if D’s conduct is negligent as to X
(in the sense that it imposes an unreasonable risk of harm upon X), but not
negligent as to P (i.e., does not impose an unreasonable risk of harm upon P),
P will not be able to recover if through some fluke he is injured.

Example;Palsgraf
v. Long Island R.R. Co.)

4 Ways to get to Proximate Cause:

You have already established that you are the actual cause,
but you are trying to cut off liability.

1.Public policy

2.The consequences
were not foreseeable

3.There is an intervening
superseding act.It cannot just be
an intervening act, because it could bring about the exact act that was going
to happen.It must be a superseding act,
one that is so bizarre that it was not foreseeable, this is not an intervening
cause.

4.The acts of 3rd
parties by actions or inaction relieves the D because the responsibility
shifts from the D to the 3rd party.

INTENTIONAL TORTS

INTENT

5Specific Intent – acted withpurpose or knowledge

6General Intent – acted with substantial
certainty

TRANSFERRED INTENT

1D acted with the purpose of commit an
intentional tort and accomplished committing one of the 5 intentional
torts.(assault, batter, false
imprisonment, IIED, trespass to land).

I. ASSAULT

Assault is defined as the unlawful, intentional
placing of another in apprehension of an imminent harmful or offensive contact.

II.BATTERY

Battery is defined as the unlawful, intentional
harmful or offensive contact of another without justification or excuse.

Harmful if it causes bodily injury.

Offensive if it injures dignity (like spitting).

Agent – can be accomplished through an agent.

Close intimate object connected to the person.

III.FALSE
IMPRISONMENT

False imprisonment is defined as the unlawful,
intentional restraint or confinement of another in a bounded area without
justification or excuse and the person is aware of it.

Children – awareness factor is waived

Serious injuries – awareness factor is waived

I.V.IIED

IIED is defined as the intentional or reckless
infliction of severe emotional distress through extreme oroutrageous conduct.

Psychiatrist & patient – the Psych has a duty to exercise
reasonable care to protect the foreseeable victim.

Parent & child

Landlord & tenant

3.Duty to Rescue;

“Good Samaritan rule” – A pure volunteer acting with
no duty, but once you start to help, you create a duty.

No duty unless; you create the peril, or you undertake the
act, and cannot prevent 3rd party aid or act with gross negligence.

“Danger invites rescue doctrine” (Cardozo) – anyone
who goes to the rescue of someone in danger is foreseeable and the party that
created the danger is liable for any injuries to the rescuer as long as they
were exercising reasonable care in their actions.

4.Gratuitous
Undertakings;

Liable for any gratuitous act or promise that increases the
risk or harm, due to reliance upon the undertaking.

CAUSATION

P must prove that the D’s N conduct was the cause in
fact of the injury, and also the proximate cause or the legal cause of the
injury.

I.Cause in Fact:

Sine Qua Non

It is the “but for” causation.The P must prove the injury would not have
occurred “but for” the D’s N.

If it passes the “but for” test, than it is a
substantial part of the injury.

Therefore, N is the cause in fact of the harm if it
was a substantial factor in bringing about the harm.

Can only have 1 cause in fact.

Probability – means it is more likely than not (a
possibility is insufficient)

Med. Mal. Cases – N and the injury must be established by
expert testimony that no other cause could have caused the injury.

“Loss of chance rule” – If the P has a < 50%
chance of survival and the M.D misdiagnosis the disease and is found N at the
time of the misdiagnosis.The court says
you had only a chance or a possibility of survival and therefore you have lost
your chance b/c it is not probable that P can survive anyway.Therefore, the M.D is only held liable for
the percentage of life that P lost as a result of the misdiagnosis (<50%
chance minus the delay in diagnosis the P lost 14% of her chance of survival,
courts take the difference and award damages for that amount = 36%).

TEXAS –
doesn’t recognize.If you don’t have at
least a 50% chance, you don’t have a case b/c

there
is no probability that you would have survived anyway.If > 50%, there is a probability that

you
would have survived.

Concurrent Causes

Separate acts of N combine to cause indivisible harm each D
is liable for the entire result even if each D’s act alone may not have caused
the result.And if 2 events are
independently sufficient to cause an injury, each D is still liable for the
full extent of the injury.

Example; If either fire alone was a “substantial factor” in
causing the damage than they would both be held liable.

3Joint & several liability & Joint
tortfeasors

Two or more act in concert or independently, and cause
indivisible harm both, each D is liable for the entire harm (each are jointly
and severally liable).The court may
find one liable for the whole percentage of the damage if the other has no
resources.If the harm is divisible,
each D pays for the harm he himself caused.

4Market Share Liability

Each D will be held liable for their share in the
market place to award damages.Unless
they can demonstrate that they could not have been the one to make the product
which caused the P’s injuries.

II. Proximate Cause (the legal cause & the scope of
liability)

It is the cause which in the ordinary and natural
sequence of events, is unbroken by any independent factors, and causes a
certain consequence.

It deals with the foresee ability of the risk of harm and
the foresee ability of plaintiffs.If an
independent factor is not foreseeable and it breaks the causal chain than it is
a superseding cause and the D is not liable.If an independent factor is foreseeable, it does not break the causal
chain and the D is liable.

There are several views on to whom does the D owe a
duty.

It is a policy determination of whether or not to hold the D
liable where cause in fact has been established.

It is a concept that can cut of liability even though there
is cause in fact.

“A pebble dropped into still water” – It produces a ripple
effect and PC deals with how long the courts are willing to imply
liability.How far out from the center
do you find liability?

5Cardozo (majority) – D is liable for
those persons within the “foreseeable zone of danger” (red ball in the center)

6Wagon Mound I – D is liable for what is
reasonably foreseeable P. (inner white ring)

7Wagon Mound II – D is liable for those
remotely foreseeable.D must know
general type of harm will occur. (inner ring)

8Andrews (minority) – All P are
foreseeable, but there is a point at which liability is cut off.Same test as in duty.

9Polemis – If the injury is a direct cause
of the D’s N, than the D is liable even though the exact extent of damages is
not foreseeable.(the outer ring)

“An intervening act of a 3rd party” does
not break the causal chain if it is a natural and foreseeable consequence of
the risk of harm created by the D’s N.

“Thin skull rule” – D takes the P as he finds them
and is liable for any aggravation of a pre-existing illness as a result of his
N.

P can recover for suicide of a tortuously inured person
driven insane by the consequences of the tortuous act.When the suicide is preceded by a history, it
is a fair issue of fact.

“New York fire rule” – there is a certain amount of
foreeeability.

“Malpractice is foreseeable” (Cardozo) – If B causes
an accident in which A is injured, and is transported to the hospital, and in
the E.R. the M.D is negligent in their care and causes further injuries to
A.Than B is liable for the malpractice
as well.

CATEGORIES OF DAMAGES

1.Nominal
Damages:are awarded in recognition
that some kind of legal injury occurred, but do not compensate for the injury.

2. Compensatory Damages:are those that directly stem from tortuous
conduct.

3. Punitive Damages:an additional sum, over & above, are awarded to punish, and set an
example rather than compensate.If the D
intentionally causes harm or acts in reckless disregard of P safety.

- Factors considered; cost of reducing the risk, D’s
awareness, reasons for failing to discover the danger, and others.

- The award must be reasonable and not excessive.For each day of pain the court will do a
remitteur.

If P was at all N and did not exercise reasonable care to
avoid injury is completely barred from recovery.

EXCEPTION – A D who has the “last clear chance” of
avoiding injury may still be liable even though the D was contributorily N.

2Comparative Negligence *n/a TEXAS

It is apportionment of the damages.The P receives a portion of the damages from
the D, for which they are not responsible.

Impure or Partial CN:TEXAS

If P is 51% or more responsible they lose everything and it
goes back to contributory N.

If 50/50 situation the P recovers half of the damages
suffered in the loss.

3Assumption of the Risk *n/a TEXAS

P assumes a known risk of N in relation to a contract (as
long as it doesn’t violate public policy), or where the P voluntarily
encounters a known danger (implied).The
P must be aware, and their actions manifest consent to the particular risk.

EXCEPTIONS – Emergencies, more extreme forms of N, of
or any intentional tort, or of the N violation of a public safety statute.

DEFENSES TO INTENTIONAL TORTS

Consent – a complete defense

4Express – P expressly consents

5Implied – P consents through conduct

Self-Defense

1Can use reasonable force if they reasonably
believe that imminent force is going to be used on them.(mistaken belief is OK)

2Can use deadly force if they believe deadly force
is going to be used on them.

3No duty to retreat (majority)

Defense of Others

1If reasonable & immediately necessary.

2Can use as much force as that person would have
been justified in using to protectthemselves.However if the
rescuer is mistaken, than he is liable for any damages caused.

Defense of Property

1Reasonable, non-deadly force to protect one’s
land

Recovery of Chattel

2Reasonable, non-deadly force to recover chattel
which has been unlawfully taken.

3When the wrongdoer is in the process of taking
the chattel; or shortly thereafter and the owner is in “hot pursuit” of the
wrongdoer.

“Shopkeeper’s Privilege” – Have a right to detain a
person they reasonably believe has taken chattel.For a reasonable time and manner of
investigation.

Necessity

1Public – Interfering with another’s personal or
real property if it is necessary to prevent a disaster to the public or a large
no. of people.Person is not liable for
the damage.

2Private – Interfering with another’s personal or
real property to prevent more harmful injury to himself or a 3rd
party.

3Courts consider the harm done & the harm
prevented.If harming the property is
the least harmful, then the person can use this privilege.Person is liable for damages caused.

Authority of Law

1If authorized by law to commit an action, not
liable in intentional torts.

Example; Arrest – May be done by a citizen or a police
officer.

A citizen can arrest for breach of peace or a warrant if
they reasonably suspect, and it is committed in their presence.

Discipline

Example; Parent/child – Parent has privilege to exercise
reasonable restraint and force on their child.

Teacher/student

Justification

2Used if D’s conduct doesn’t fall into any of the
other categories.

3Conduct is viewed in light of the circumstances
to determine if they acted reasonably.